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Encroachment Agreement . OC# 1778645
Docurnent Number'1k'' f�l.:=L F'&f `" Kt 5 C>7 1 �� �� � '
REGISTER OF DEEDS
i O C0t„t t ,t. r 1
I't COilDED ON:
a 11/02/ 018 09:22 Ate
RECOttt"1;ING FEE:
Recording Area
Name and Return Address
City Attorneys Office
PO Box 1130
Oshkosh,WI 5490 -1 30
91336170000
Parcel Identification.Number
CITY OF OSHKOSH AND
REDEVELOPMENT AUTHORITY FOR THE CITY OF OSHKOSH
AND
WISCONSIN BELL, INC. d/b/a AT&T- WISCONSIN
This document drafted by:
David J. Praska,Deputy City Attorney
City of Oshkosh, Wisconsin
October 8, 2018 I
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh(City)and the Redevelopment Authority for
the City of Oshkosh (RDA), and Wisconsin Bell, Inc, d/b/a AT&T - Wisconsin, (AT&T). The
parties enter into this Agreement for $1.00 and other good and valuable consideration, the
sufficiency and receipt of which is acknowledged.
1) The City is the fee owner of Property (City Property) identified as Parcel Number
90102000100,containing a water tower for its public water supply and commonly known as 50
Riverway Drive, and which is more particularly described as follows:
Lot One (1)in Certified Survey Map No. 7150, filed with the Winnebago
County Register of Deeds in Volume 1 of Survey Maps,Page 7150, as
Document Number 1724920; said Map being part of Lot 4 in Certified
Survey Map No. 6553,being part of the Southeast Quarter of the Northeast
Quarter(SE 1/4 of the NE 1/4) and part of the Northeast Quarter of the
Southeast Quarter(NE '/4 of the SE Y4)in Section Twenty-three (23),
Township Eighteen(18)North, Range Sixteen (16)East, in the First Ward,
City of Oshkosh, Winnebago County, Wisconsin.
2) The RDA is the fee owner of Property (RDA Property) identified as Parcel Number
90102000200,commonly known as 0 Marion Road,and which is more particularly described as
follows:
Lot Two (2) in Certified Survey Map No. 7150, filed with the Winnebago
County Register of Deeds in Volume I of Survey Maps,Page 7150, as
Document Number 1724920; said Map being part of Lot 4 in Certified
Survey Map No. 6553, being part of the Southeast Quarter of the Northeast
Quarter(SE 1/4 of the NE 1/4) and part of the Northeast Quarter of the
Southeast Quarter(NE 1/4 of the SE 1/4)in Section Twenty-three (23),
Township Eighteen (18)North, Range Sixteen (16) East, in the First Ward,
City of Oshkosh, Winnebago County, Wisconsin.
3) The City has entered into a separate lease agreement with Sprint Spectrum,LLP that affects
parts of the City Property. The purpose of the lease agreement is to allow Sprint the ability to
place and operate Antenna Facilities on and around the City's new public water tower located on
the City Property. AT&T has entered into a separate agreement with Sprint,or one of Sprint's
affiliated entities,to provide certain services and facilities connecting Sprint's Antenna Facilities
with necessary utilities within the Marion Road right-of-way.
4) AT&T proposes to install underground utility equipment and facilities within City Property
and RDA Property to the extent necessary to enable Sprint to carry out the purpose of its Lease
Agreement with the City. The underground utility equipment and facilities will be located within
an area identified and described in Exhibit A, attached to this Encroachment Agreement,
October 8, 2018 2
5) No structure or object is allowed to encroach into City Property or RDA Property without
City and RDA permission. The proposed underground utility equipment and facilities encroach
into the City Property and RDA Property and therefore requires City and RDA permission.
6) The City and RDA have reviewed AT&T's request to install underground utility equipment
and facilities (Encroachments)that would encroach into the City Property and RDA Property.
The City and RDA will allow the placement of these Encroachments subject to the terms of this
Encroachment Agreement. A material component of this Agreement is the explicit
understanding that the City and RDA permission allowing the identified Encroachments does not
create,transfer,convey,or give any property rights. The parties agree that this Agreement isn't
intended to convey,and shall not convey,any easement rights.This Encroachment is personal to
AT&T and is completely revocable by the City and RDA pursuant to terms described in this
Agreement.
7) This Encroachment will be allowed to project into the City Property and RDA Property,
provided that the actual Encroachment constructed is materially similar to the design and
specifications proposed by AT&T and approved by the City and RDA.
8) City and RDA permission for this Encroachment is contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal codes and rules. The
Encroachment shall comply with City Ordinances, and state and federal laws and regulation
regarding related subjects including setbacks,fencing,zoning,property maintenance,permitting,
and public nuisance.
9) AT&T agrees to be solely responsible for the installation and maintenance of the
Encroachment,and is solely responsible for any and all personal or property damage caused by
the Encroachment.
10) AT&T is solely responsible for securing, maintaining, repairing, and replacing the
Encroachment. AT&T is responsible for identifying accurate property boundaries and the
boundaries of the allowed Encroachment area. City and RDA permission and approval of this
Encroachment is not meant to state or imply that the City or the RDA guaranties or warranties
the short and long term stability, safety, or usefulness of the Encroachment. AT&T always
retains the responsibility and liability for the Encroachment,
11) AT&T acknowledges and agrees that the City Property and RDA Property,including utilities
and facilities therein, are subject to maintenance,repair, and replacement. To that end,
a) AT&T is solely responsible for rerouting, removing, or protecting if the circumstances
warrant and the City and RDA agrees,the Encroachment if it will be affected by any public
maintenance, repair, or replacement projects or activities within City Property and RDA
Property. Neither the City nor the RDA will not be responsible for any costs related to the
rerouting,disruption,or protection of the Encroachments resulting from the aforementioned
public maintenance,repair,replacement projects or activities by the City or RDA.
b) AT&T is solely responsible for protecting the City and RDA's public utilities and facilities
from adverse effects related to the existence of the Encroachments.
October 8, 2018 3
c) In the event that maintenance,repair,or replacement of public property,utilities or facilities
in the City Property and/or RDA Property is planned near the Encroachments,the City and
RDA agree to make reasonable efforts to notify AT&T of these projects or activities in
advance.
d) If AT&T elects to remove or otherwise take actions to protect the Encroachments, such
actions must be taken in a manner approved by the City and RDA and within the timeframe
for the City and/or RDA's anticipated work.
e) Neither the City nor the RDA shall be responsible for any damage to the Encroachments,or
any structure or hardware attached to the Encroachments,except to the extent of the City or
RDA's gross negligence or willful misconduct.
f) If,after providing thirty(3 0)days advance notice to AT&T of City or RDA actions or,in the
case of an emergency, reasonable-advanced notice if possible, the City and/or RDA may
proceed according to its project plans and may reasonably conclude that AT&T has taken all
necessary steps to reroute or otherwise protect its equipment and facilities. Neither the City
nor the RDA shall be responsible for damages in the event AT&T has not,in fact,rerouted or
otherwise protected its equipment and facilities,
g) AT&T shall be responsible for rerouting, reinstalling, or reconstructing the Encroachment
that is necessary due to lawful actions of the City and RDA.
12) Due to the revocable nature of the City and RDA's permission and the absence of any
property rights conveyed or granted, AT&T is not eligible for, and specifically disavows, any
right to receive compensation of any kind for the removal,alteration,or limited accessibility,in
whole or in part, whether temporary or permanent, of the Encroachment, This acceptance
includes any AT&T affiliate or end user of AT&T set vices including,without limitation,Sprint,
13) The City is allowed to revoke its permission for the Encroachment at its sole discretion for
any of the following reasons provided,however,the City and RDA give AT&T thirty(30)day
notice of the intended revocation aloe with providing AT&T with the opportunity
g p g pp ty for a goad
faith discussion regarding the date of revocation and any opportunities to continue permission to
Encroach into City Property and RDA Property:
a) The City's lease agreement with Sprint for use of the City Property expires. Notwithstanding
any other term of this Agreement, this Encroachment Agreement shall be revoked on the
same date as the last date of the Sprint lease agreement without further notice.
b) The public use of the City Property and RDA Property prohibits the continued existence and
location of the Encroachment,with a particular prohibition described in statutes,court cases,
rules,regulations, or best practices;
c) The continued existence of the Encroachment would limit the public use of the City Property
and/or RDA Property,with such determination to be made solely at the discretion of the City
and RDA;
October 8, 2018 4
d) The City determines that the Encroachment adversely affects the functioning of the City
Property and RDA Property,including any public utilities or facilities therein;
e) The Encroachment is increased, expanded, moved, or used to serve other users without
permission;
0 The Encroachment is prohibited by any local, state, or federal rules, laws, or guidelines
relating to any public facility located in the City Property and/or RDA Property;
g) AT&T fails to properly maintain, repair, or replace the Encroachment;
h) AT&T fails to provide the City with annual written proof that the Encroachment is covered
by the required insurance,
14) In the event that AT&T fails or refuses to remove the Encroachment after permission has
expired or revoked,the City and RDA may treat the Encroachment as abandoned and proceed in
a lawful and reasonable manner thereafter. In this circumstance,AT&T shall be responsible for
any increased cost, or diminished value of property,to the extent caused by AT&T's failure to
remove its Encroachment.
15) AT&T releases the City and RDA,their employees,agents,elected officials,and authorized
volunteers from all debt, claims, demands, damages, actions and causes of action to the extent
caused by the Encroachment. AT&T shall protect and hold the City and RDA harmless against
all actions, claims and demands of any kind or character to the extent caused by the
Encroachment. AT&T agrees to indemnify and pay to the City and RDA all amounts that the
City and RDA may be required,obligated,or adjudged as responsible to pay,for any dispute or
action to the extent caused by the Encroachment. This indemnification is broad, and shall
include damages,attorney's fees and costs,and defense costs.AT&T agrees that this paragraph
shall be liberally construed in favor of the City and RDA, in consideration of the privilege
granted by the City and RDA under this Agreement, except to the extent of the City or RDA's
gross negligence or willful misconduct.
16) At all times that the Encroachment is located in the City Property and RDA Property,
AT&T's property liability insurance shall cover all of AT&T's potential liabilities related to the
Encroachment. AT&T's insurance shall provide reasonable coverage for potential damages to
persons and property cause wholly, or in part, by the Encroachment. Minimum insurance
coverage related to the encroachment shall be$500,000 for each occurrence for bodily injury and
property damage liability and $500,000 general aggregate. AT&T shall include the City and
RDA as an,additional insured on its policy for claims, liabilities, and damages related to the
encroachments.AT&T shall annually provide the City and RDA with proof of insurance for the
Encroachment.
17) AT&T's responsibilities pursuant to this Agreement extend to other persons,contractors,and
agents performing work on AT&T's behalf and related to the Encroachment, as well as
successors and assigns, and those with any interest in the Property. AT&T shall have primary
responsibility for the actions of AT&T's contractors, agents,or representatives.
October 8, 2018 5
18) This Agreement is solely for the benefit of the City and AT&T, and this Agreement is not
intended to benefit any third party.
19) The election to enforce or not criforce any provision of this Agreement,as well as the timing
of enforcement,shall be at the City and/or RDA's sole discretion and shall not act as a waiver of
any rights to exercise any right relating to the Encroachment,
20) This Agreement shall be governed by the laws of the State of Wisconsin, and the venue of
any dispute or disagreement shall be Winnebago County, Wisconsin. This Agreement shall
incorporate and apply all immunities and limitations on liability provided to municipalities
within the Wisconsin Statutes,regardless of whether a claim is based upon contract,tort,or other
theory. The City and RDA do not waive such immunities and limitations and shall be able to
rely on them through this Agreement.
21) The Encroachment shall not constitute a property right and the City and RDA's permission
therefore shall not attach or run with the land. This Agreement may be recorded with public land
records for the purpose of providing notice if it's limitations.
22) All parties signing below state that they have the authority to enter into this Agreement
without limitation or restriction.
23) The City and RDA's permission is personal to AT&T,and cannot be transferred or assigned
to any other person or entity, whether voluntarily or involuntarily. The City and RDA shall
review in good faith any requests to enter into this or other agreement with a successor or
assignee of AT&T. Permission for the Encroachment is revoked immediately and without notice
as of the time that any person or entity other than AT&T becomes an owner of the
Encroachment, or obtains an interest in the operation of the Encroachment equipment and
facilities
SIGNATURE PAGE FOLLOWS
October 8, 2018 6
WISCONSIN BELL,INC.—AT&T-WISCONSIN
(print name) (title) (print name) (title)
STATE OF WISCONSIN )
WA'Vu4j 'A ) ss.
WrNNEB*00 COUNTY
Personallycarne b-area
this of aftt_)6 c'2018,the above-named
to me known to be person who executed the foregoing document and acknowledged the same.
ICA 11�114-
Notary Public,SQa'e of Wansin7 H. &,6,
is
My( n xpires:
NOTARY
PUBLIC
CITY OF OSHKOSH
: v By: And
WIS
Mak A. Rohloff, City Manager Pamela R. Ubrig,"City Clerk
STATE OF WISCONSIN
)ss.
WINNEBAGO COUNTY )
Personally came before me this day of 2018,the above-named Mark A.Robloff,City Manager,and
Pamela R.Ubrig,City Clerk,of the City of Oshkosh,a municipal corporation,to me known to be the persons who executed the
foregoing instrument,and to me known to be such officers of said corporation,and acknowledged that they executed the foregoing
instrument as such officers as the(feed of said corporation,by its authority.
la
Notary Public,State`oTWi'sc6nsm
My Commission expires: 1Z//3/Ze2_0
REDEVELOPME T AUTHORITY FOR THE CITY OF OSHKOSH By: By:
ff. Al en.Davis., E
III, Executive Director Steven J. Cummings, Chair
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY
Personally came before me this 3�tday of. 2018,the above-named 11.Allen Davis,111,Executive Director,
and Steven J.Cummings,Chair,of the Redevelopment Authority of the City of Oshkosh,tome known to be the persons who executed
the foregoing instrument,and to me known to be such officers of said entity,and acknowledged that they executed the foregoing
instrument as such offices as the deed of said entity,by its authority.
Notary Public,State Of Wisconsin,
My Commission expires:
October 8, 2018 7
EXHIBIT "A" FOR UTILITY ENCROACHMENT
LEGAL DESCRIPTION:
PART OF LOTS I AND 2 OF CERTIFIED SURVEY MAP 7160, IN SECTION 23, TOWNSHIP *18 NORTH, RANGE 16
EAST, IN THE FIRST WARD, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2; THENCE NORTH 29 DEGREES 21 MINUTES 00 SECONDS.
EAST 126.13 FEET, ALONG THE WEST LINE OF SAID LOT 2; THENCE NORTH 37 DEGREES 23 MINUTES 42
SECONDS EAST 15.13 FEET, ALONG THE WEST LINE OF SAID LOT 2; THENCE NORTH 53 DEGREES 48 MINUTES
13 SECONDS WEST 8.00 FEET, ALONG THE SOUTH LINE OF SAID LOT 1; THENCE NORTH 37 DEGREES 20
MINUTES 01 SECONDS EAST 60,70 FEET; THENCE NORTH 42 DEGREES 58 MINUTES 05 SECONDS EAST 49.62
FEET; THENCE NORTH 88 DEGREES 58 MINUTES 05 SECONDS EAST 16.88 FEET; THENCE SOUTH 36 DEGREES
52 MINUTES 54 SECONDS WEST 10.14 FEET; THENCE SOUTH 88 DEGREES 58 MINUTES 06 SECONDS WEST 6.25
FEET; THENCE SOUTH 42 DEGREES 58 MINUTES 05 SECONDS WEST 45,83 FEET,- THENCE SOUTH 37 DEGREES
20 MINUTES 01 SECONDS WEST 82.15 FEET, ALONG THE WEST LINE OF SAID LOT 2, THENCE SOUTH 63
DEGREES 48 MINUTES 13 SECONDS EAST 16.01 FEET' THENCE SOUTH 37 DEGREES 23 MINUTES 42 SECONDS
WEST 22.39 FEET; THENCE SOUTH 29 DEGREES 21 MINUTES 00 SECONDS WEST 123.73 FEET; THENCE NORTH
65 DEGREES 46 MINUTES 25 SECONDS WEST 15.06 FEET, ALONG THE SOUTH LINE OF SAID LOT 2 AND THE
NORTH RIGHT-OF-WAY LINE/OF MARION ROAD, TO THE POINT OF BEGINNING.
N88*58'051* A
15.88, 14 i
6.25'
S88'58' "W
LOT I csm 7150
SE COR
LOT
LINE �IM 7 1�5 01
S8973730"W 189.W
LOT 2
CSM 7160
N
11011
Scale 1 inch 20 feet
.0 40
1-0
DATED: 6/6/2018
UT# A015EGP EASE# 80727 RW# 2018-60
rya
LOT 2 FOX VALLEY
`ar°$ eq�� 't. LAND SURVEYING
A
I-, csm 7150 4321 W. College Ave.,Suite 200
Appleton,WI 54914
(920) 410-3379
(920) 474-5025
114jjo LEGEND mail@foxvalleylandsurveying.com
foxvalleylandsurveying.com
M AT&T UTILITY BOX ON
BUILDING LINE PROJECT NO. 181623-3
3